STATE OF MINNESOTA RAMSEY COUNTY

DISTRICT COURT SECOND JUDICIAL DISTRICT Case Type: Civil

Minnesota Voters Alliance, Minnesota Majority, Minnesota House of Representative Steve Drazkowski, Minnesota House of Representative Ernie Leidiger, Minnesota House of Representative Mary Franson and House of Representative Jim Newberger, Petitioners, v. State of Minnesota and Secretary of State Mark Ritchie, in his official capacity, or his successor, Respondents. INTRODUCTION

Court File No. 62-CV-13-7718 Judge John H. Guthmann

RESPONDENT SECRETARY OF STATES MEMORANDUM OF LAW IN OPPOSITION TO PETITIONERS QUO WARRANTO PETITION

On September 26, 2013, Respondent Secretary of State Mark Ritchie (hereinafter the Secretary) announced the creation of a new tool on the Office of Secretary of States website that permits Minnesotans to submit their voter registration applications directly to the Office. Petitioners have brought this action seeking to prevent Minnesota voters from accessing this method of delivery. Petitioners also seek to nullify the registrations of eligible voters who have already used the system to register to vote. As an initial matter, the State of Minnesota is not a proper party. Petitioners also lack standing to bring the instant action, so the Court lacks jurisdiction to consider the Petition. Even if this Court has jurisdiction, the Petition fails because the challenged action is within the Secretarys authority under Minnesota law, which permits the Secretary to accept voter registration applications that are submitted electronically. Indeed, Minnesota has long accepted

electronic voter registrations. Finally, the remedies sought by Petitioners greatly exceed those permitted by a writ of quo warranto. The Court should deny Petitioners Petition for Writ of Quo Warranto. FACTS Minnesotans have a constitutionally protected right to vote. The Minnesota Constitution provides that [e]very person 18 years of age or more who has been a citizen of the United States for three months and who has resided in the precinct for 30 days next preceding an election shall be entitled to vote in that precinct. Minn. Const. art. VII, 1; see also id. (listing persons not entitled to vote, such as a person who has been convicted of treason or felony, unless restored to civil rights). See also U.S. Const. amends. XV, XIX, XXVI; Minn. Stat. 201.014 ([A]n individual who meets the following requirements at the time of an election is eligible to vote . . . (a) be 18 years of age or older; (b) be a citizen of the United States; and (c) maintain residence in Minnesota for 20 days immediately preceding the election.). Registration is not required by either the State or federal Constitution. Id. Minnesota statutes, however, impose registration as a procedural prerequisite for exercising the franchise. Minn. Stat. 201.018, subd. 2 (An eligible voter must register in a manner specified by section 201.054, in order to vote in any primary, special primary, general, school district, or special election held in the county.). A. Voter Registration in Minnesota.

Prospective Minnesota voters register to vote by complying with the application requirements set forth in Minnesota law. Minn. Stat. 201.018; 201.054, subd. 1; 201.061, subds. 1 and 3. The voter registration application is required to include information such as the voters name, address, and date of birth. Minn. Stat. 201.071, subd. 1. Typically, the

application will include either a current and valid Minnesota drivers license number or state 2

identification number, or, if a voter has neither, the last four digits of the voters Social Security number. Id. The application also must include a certification of voter eligibility and the voters signature. Id. Under state law, a registration application meeting the above requirements cannot be deemed deficient. Minn. Stat. 201.071, subd. 3. Furthermore, [n]o eligible voter may be prevented from voting unless the voters registration application is deficient or the voter is duly and successfully challenged in accordance with section 201.195 or 204C.12. Id. These

referenced provisions permit challenges solely based on a voters residence or eligibility. See Minn. Stat. 201.195, subd. 1; 204C.12, subd. 1. State law provides Minnesota voters with various mechanisms for completing and submitting registration applications to election officials. Prospective voters, as well as current voters who need to change their registration information, may complete and submit an application. (See Minnesota Voter Registration Application, attached to Affidavit of Gary Poser (hereinafter Poser Aff.) as Ex. A.) Voters have traditionally completed applications either by (1) completing the application at a state or county elections office; (2) mailing the application to an elections office; or (3) filling out the application and giving it to a third-party agency, organization, or individual. In the latter case, the third-party agency, organization, or individual then submits the application to the relevant elections office. See, e.g., Minn. Stat. 201.061, subd. 1 (A state or local agency or an individual that accepts completed voter registration applications from a voter must submit the completed applications to the secretary of state or the appropriate county auditor within ten

days after the applications are dated by the voter.).1

Indeed, every biennium, political

associations and non-partisan organizations, such as the League of Women Voters, distribute thousands of registration applications to prospective Minnesota voters. (Poser Aff 11(a).) The private organizations then collect the completed applications and submit them to state and local election officials for entry into the statewide voter registration system. (Id.) When paper applications are submitted to the Secretarys Office, they are sent to the appropriate county for data entry and processing. The voters information is then manually entered by the county into the Statewide Voter Registration System (SVRS) database. (Poser Aff. 8; Minn. Stat. 201.021 - .022.) In addition to paper applications, the Secretarys office has accepted electronicallysubmitted voter registration applications since 2004. Individuals applying for a drivers license through the Minnesota Department of Public Safety are permitted to elect to register at the same time, and that information is submitted to the Secretarys Office electronically. Minn. Stat. 201.022, subd. 1(1), (4) (provid[ing] for electronic transfer of completed voter registration applications from the Department of Public Safety to the secretary of state or the county auditor); see also 2004 Minn. Laws ch. 293, art. 1, 1 (enacting these provisions of section 201.022); Minn. Stat. 201.161 (Applicants for drivers licenses or identification cards must be asked if they want to register to vote at the same time and that information must be transmitted at least weekly by electronic means to the secretary of state.).

See also Minn. Stat. 201.162 (requiring all state agencies or their agents to provide voter registration services for employees and the public and stating that nonpartisan voter registration assistance is part of the job of all appropriate agency employees); 201.054, subd. 3 (regulating compensation for individuals engaged in the solicitation, collection, or acceptance of voter registration application from voters for submission to the secretary of state, county auditor, or other local election official).

When applying through the Department of Public Safety, individuals registering to vote are not required to complete or sign a separate voter registration application. Id. Rather, they may simply check a box and provide a signature in a dedicated portion of their drivers license application. Id. The Department of Public Safety then transmits the necessary information electronically to election officials. Id. B. The Online Voter Registration System.

On September 26, 2013, the Secretarys Office announced the creation of an online registration tool on the Offices website. (Poser Aff. 19; see also Affidavit of Mark Ritchie (hereinafter Ritchie Aff.) 3.) The web tool offers current and prospective Minnesota voters the opportunity to print a paper registration form or to use an online version. (See Poser Aff. Ex. B (online registration application).) The questions on each form are substantively identical; however, to submit a registration electronically, a voter must provide both (1) a valid email address and (2) a Minnesota-issued drivers license, Minnesota-issued identification card number, or the last four digits of their Social Security number. (See id.). The applicant must check a box verifying the accuracy of the information he or she is submitting under penalty of law and sign the application by typing his or her name into the signature field on the application, which indicates that the typed name is the voters legally binding signature. (Id.; see also Minn. Stat. 325L.07) If an online applicant fails to provide an email address, an identification number, or any of the information required by law, the Web tool rejects the application and notifies the applicant that he or she must provide all required information before submitting it. (Poser Aff. 16(a)(b).) Once the application has been completed, the software immediately encrypts and saves the applicants data. (Id. at 16(c).) The electronic Web service then uses a firewall to retrieve, transmit, and process the data in a secure fashion. (Id.) 5

Once the application data is behind the firewall, it undergoes an automated security check that includes a comparison to records in (1) the SVRS database, (2) the databases maintained by the Driver and Vehicle Services (DVS) division of the Minnesota Department of Public Safety, or (3) the database maintained by the federal Social Security Administration. (Poser Aff. 18.) Any application that fails to find a match in the drivers license, state identification card, and Social Security processes detailed above is automatically rejected. (Id. at 18(d).) The

applicant is sent an e-mail message informing him or her that the application cannot be processed and that he or she may resubmit the application either online or on paper. (Id.) If accepted, the applicants data is treated like any other electronic voter registration data received by the Office and is queued or loaded for the appropriate county for processing. (Id. at 18(a)-(c).) C. Verification and Use of Electronically-Stored Voter Registration Information.

Regardless of the method by which a voters information arrives at the county elections office, it is stored in electronic format in the SVRS database. Minn. Stat. 201.021-.022. The SVRS provides a means for the necessary sharing of registration information between appropriate state and county officials to occur electronically. Minn. Stat. 201.022. The system is also used to coordinate with information contained in other state and federal databases to ensure consistency. Id. Paper applications, whether delivered by mail, in person, or by a third party, are manually entered by local election officials in the county where the voter resides. (Poser Aff. 8.) Information that the Office of Secretary of State receives electronically,

whether from the Department of Public Safety or the Offices website, is placed into the appropriate countys electronic pending-applications queue for processing in the SVRS. (Poser Aff. 10, 18(a)-(c).)

Once the registration application data has been entered into the SVRS, it is subjected to ongoing verification processes. The registration data in the SVRS is continually compared with data in other government databases to ensure the accuracy and completeness of the registration data. (Poser Aff. 24-25.) These verification procedures ferret out typographical errors and other similar mistakes. (Poser Aff. 26(a)); Minn. Stat. 201.1615 (procedure verif[ies] the accuracy of the information provided on applications for voter registrations). See also Minn. Stat. 204C.12 (setting forth challenge process, under which voters whose SVRS records have been flagged as challenged are required to provide additional information under oath before being allowed to vote). Finally, the procedures serve a law-enforcement function, allowing for the prosecution of persons who have falsely certified on election documents that, for example, they are not serving felony sentences. (Poser Aff. 26(b)); Minn. Stat. 201.157 (providing that Secretary shall notify county auditors upon learning that persons under felony sentences appear to have illegally registered or voted).) D. Online Registration Does Not Change Voter Registration Procedures, Except To Make Registration More Accessible.

The verification processes performed by the Secretary of State and county and local election officials do not change depending on the manner in which voters provide their registration information to election officials. On the contrary, whether submitted in paper or electronic form, each voters registration information is processed or entered into the SVRS, and undergoes the various verification processes. Electronic submissions typically have a lower error rate than hand-written paper applications, which must be read and entered manually by clerks. (Poser Aff. 20.) During the verification processes noted above, this lower error rate yields significantly fewer false positives or missed matchesthat is, registrations that appear to contain invalid information or fail to correlate with records in other government

databases as the result of simple typographical errors, illegible handwriting, or other human mistakes. (Id. at 28.) Similar electronic voter registration efforts in other states have yielded an increase in registration, as well as improved the reliability of the information contained in voter registration databases. (Poser Aff. 21.) In addition, permitting electronic submissions increases the

efficacy and reduces the cost of the registration system, both for Minnesota voters and for state and county election officials. (Id. at 22.) Since the websites launch, at least 2,225 voters statewide have chosen to submit online applications. (Id. at 23.) Of these applications, at least 625 are new registrations. (Id.) The remainder are either changes or updates to information on current voters, or are currently unprocessed. (Id.) ARGUMENT I. QUO WARRANTO IS AN EXTRAORDINARY AND LIMITED REMEDY. The writ of quo warranto is an ancient common law writ that has enjoyed a unique and varied history in the State of Minnesota. Rice v. Connolly, 488 N.W.2d 241, 243 (Minn. 1992). The Minnesota Supreme Court has described the modern use of the writ as a judicial proceeding to correct the usurpation, misuser, or nonuser of a public office or corporate franchise. State ex rel. Danielson v. Village of Mound, 48 N.W.2d 855, 863 (Minn. 1951).2 The remedy of quo warranto applies only to an ongoing usurpation, misuser, or nonuser of power; it is not available to challenge government conduct that is pending or has been completed. See, e.g., id. at 864; State ex rel. Lommen v. Gravlin, 295 N.W. 654, 655 (Minn. 1941).

The Minnesota Supreme Court has defined usurpation as the unauthorized arbitrary assumption and exercise of power, misuser as a use unlawfully in excess of, or varying from, ones right, and nonuser as a failure to use or exercise any right or privilege. Danielson, 48 N.W.2d at 863.

The writ of quo warranto is an extraordinary remedy that rests in the sound discretion of the court. Rice, 488 N.W.2d at 244; Danielson, 48 N.W.2d at 861. See also State ex rel. Burnquist v. Village of North Pole, 6 N.W.2d 458, 460 (Minn. 1942) (recognizing the writ of quo warranto is an extraordinary legal remedy). The writ is an equitable remedy that is rarely invoked by the courts. Rice, 488 N.W.2d at 244. Indeed, the Supreme Court has exercised its discretion in favor of issuing the writ infrequently and with considerable caution. Id.3 II. THE PETITION IS NOT JUSTICIABLE. The Petition is not justiciable because Petitioners lack standing to seek quo warranto relief, and any individualized claim for relief is not ripe. Standing is a fundamental jurisdictional requirement. Annandale Advocate v. City of Annandale, 435 N.W.2d 24, 27 (Minn. 1989). In order to establish standing, Petitioners must show that their claimed injury is personal, particularized, concrete, and otherwise judicially cognizable. Conant v. Robins, Kaplan, Miller & Ciresi, L.L.P., 603 N.W.2d 143, 150 (Minn. App. 1999). Petitioners standing must be based on an injury that is distinct from that of the general public. Channel 10, Inc. v. Indep. Sch. Dist. No. 709, 215 N.W.2d 814, 820 (Minn. 1974). In other words, the claimed injury must be one that is special or peculiar and different from damage or injury sustained by the general public. Id.; see also Conant, 603 N.W.2d at

Although Petitioners lack of standing is dispositive, the State of Minnesota is not a proper party to this Petition. See Travis v. Reno, 163 F.3d 1000, 1007 (7th Cir. 1998) ([T]he proper defendant is the person whose actions cause injury, and that does not include the overarching government entity such as a United States or State of Minnesota); Quinones v. City of Evanston, Illinois, 58 F.3d 275, 277 (7th Cir. 1995) (same); Marks v. United States Congress, 285 Fed. Appx. 762, 763 (D.C. Cir. Jul 25, 2008) (same). Indeed, seeking injunctive relief against the State of Minnesota begs the question of which of the many actors comprising state government is to be held accountable. Finn v. Rendell, 990 A.2d 100, 106 (Pa. Commw. Ct. 2010). Petitioners have identified a specific actorthe Secretary of Stateand the State of Minnesota should be dismissed as an improper party.

150. Petitioners assertions that they have standing as taxpayers, legislators, and/or candidates fail. Given the history and limited availability of quo warranto, Petitioners claim to taxpayer standing fails. A private party does not ordinarily have standing to initiate quo warranto

proceedings without a special interest in the matter distinct from that of the general public. See State ex rel. Burk v. Thuet, 41 N.W.2d 585, 586 (Minn. 1950) (discharging order to show cause where private party failed to identify himself as having an interest different from general public and holding that [t]he general rule of law in this state is that a private citizen has no right, except under extraordinary or exceptional circumstances, to the use of quo warranto to test the title of an incumbent of a public office); State ex rel. Wells v. Atwood, 277 N.W. 357, 358 (Minn. 1938) (citing Dunnells Minnesota Digest stating, In general a private person having no interest in the matter distinct from the general public, will not be allowed to file an information [for quo warranto], without the consent of the attorney general, to test the right of an incumbent of a public office to hold the same.); Hammer v. Narverud, 171 N.W. 770, 772 (Minn. 1919) (rejecting assertion of standing by taxpayers in quo warranto petition, stating that the individual citizen with no special interest will not be heard as the champion of the cause of the general public). Petitioners, as taxpayers, cannot show any special interest different from that of the general public, so taxpayer standing should be rejected.4

In addition to the limits created by the quo warranto action, Petitioners broad interpretation of McKee v. Likins, 261 N.W.2d 566 (Minn. 1977), in regard to misappropriation of funds has been rejected by Minnesota courts. See, e.g., Conant, 603 N.W.2d at 14; Rukavina v. Pawlenty, 684 N.W.2d 525, 531 (Minn. App. 2004); Hageman v. Stanek, No. A03-2045, 2004 WL 1563276 (Minn. App. July 13, 2004), attached to Affidavit of Nathan J. Hartshorn as Ex. A. If taxpayer standing were conferred for every official action that involved the spending of money, there would be no meaningful limit to the doctrine.

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Petitioners Drazkowski, Leidiger, Franson and Newbergers claim to legislator standing likewise fails. Legislator standing exists only where the legislator can demonstrate a concrete, personal, particularized injury that differs from the interests of his or her house. Conant, 603 N.W.2d at 150. Injury that is institutionalnamely, the diminution of legislative powerdoes not provide the personal, particularized harm that supports legislative standing. Id. (citing with approval authority stating it is untenable to argue legislative standing exists based on deprivation of legislators right to participate and vote on legislation in a manner defined by the Constitution). While vote nullification is a sufficiently concrete and personal injury to confer standing on a legislator, vote nullification has been construed to stand at most, for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative act have standing to sue if that legislative action goes into effect (or does not go into effect) on the ground that their votes have been completely nullified. Rukavina v. Pawlenty, 684 N.W.2d 525, 532 (Minn. App. 2004) (quoting Conant, 603 N.W.2d at 150). Petitioners claim, based only upon an argument that the Legislature, rather than the Secretary, should address online voting, does not raise the issue of vote nullification. As a result, it is insufficient to establish legislator standing. Petitioners Representatives Drazkowski, Leidiger, Franson and Newberger also cannot establish a justiciable controversy based upon their status as potential future candidates. To establish the necessary injury-in-fact for standing, a litigant must demonstrate a harm that is both concrete and actual or imminent, not conjectural or hypothetical. Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (quotation and citation omitted); Twin Ports Convalescent, Inc. v. Minnesota State Bd. of Health, 257 N.W.2d 343, 346 (Minn. 1977). In a quo warranto petition, the requisite justiciability does not exist if the litigant seeks declarations upon remote contingencies or as to matters where the plaintiffs interest is merely contingent upon the 11

happening of some event in the future. State ex rel. Sviggum v. Hanson, 732 N.W.2d 312, 322 (Minn. App. 2007) (quotation omitted). Rather, the litigant must have sustained or be in immediate danger of sustaining some direct injury in order to establish standing. Rukavina, 684 N.W.2d at 531. Moreover, in order for this Court to exercise jurisdiction, Petitioners must show that there is a ripe controversy. McCaughtry v. City of Red Wing, 831 N.W.2d 518, 523 (Minn. 2013) (recognizing that ripeness must be established before a Minnesota court has jurisdiction to issue a declaratory judgment regarding constitutionality). A claim is not ripe if it is dependent on events that may or may not occur in the future. Minn. Pub. Utils. Commn v. F.C.C., 483 F.3d 570, 582 (8th Cir. 2007) (recognizing that [a] claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all) (quoting Texas v. United States, 523 U.S. 296, 300 (1998) (finding claim regarding sanctions was not ripe since we have no idea whether or when such a sanction will be ordered)). Petitioners assert that they expect[ ] to run for re-election (Pet. 5-7), will face election contests in seeking reelection (Pet. 43), and may be harmed by a hypothetical future election decided by non-registered persons (Pet. 44). However, the next election will not occur until, at the earliest, the August 2014 state primary. Even assuming Petitioners will run for re-election, and someone will run against them, any number of intervening events could occur before the 2014 election cycle. Indeed, the Legislature might enact legislation regarding

electronic registration that will address Petitioners concerns. Because Petitioners claims as potential candidates depend on contingent future events that may never occur, their claims are not justiciable.

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II.

SECRETARY RITCHIE IS AUTHORIZED TO PERMIT AND FACILITATE ONLINE REGISTRATION. The Secretary of State has the authority and discretion to permit Minnesota voters to

submit their voter registration applications to his Office by electronic means.

Petitioners

selective reading of Minnesotas voter registration statutes is inconsistent with the States election law and the Uniform Electronic Transactions Act (UETA). Petitioners also ignore the fact that Minnesota Secretaries of State have lawfully accepted registration applications submitted either electronically or by third parties for many years. A. Secretary Ritchie Has Broad Constitutional And Statutory Authority And Discretion Over Elections In Minnesota.

The Secretary of State is a constitutional office in the executive branch. Minn. Const. art. V. The Secretary is the chief election official in the state. Clark v. Pawlenty, 755 N.W.2d 293, 299 (Minn. 2008). As such, the Secretary is charged with numerous responsibilities to facilitate and protect Minnesotans right to vote. For example, the Minnesota Constitution specifically charges the Secretary with the responsibility to oversee election returns. Minn. Const. art. VII, 8. The Secretary also has been granted broad statutory authority and discretion over elections. Minnesota Statutes provide the Secretary the authority to sponsor or participate in nonpartisan activities to promote voter participation in Minnesota elections and in efforts to increase voter registration and voter turnout. Minn. Stat. 204B.27, subd. 6. B. UETA Authorizes the Secretary to Accept Registrations in Electronic Form.

State law also gives the Secretary the discretion to determine whether and to what extent his office will accept electronic records and signatures, including voter registrations. The

Minnesota Legislature passed UETA in 2000 to facilitate and promote commerce and governmental transactions by validating and authorizing the use of electronic records and

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electronic signatures. Minn. Stat. 325L.06. UETA defines electronic record to mean a record created, generated, sent, communicated, received, or stored by electronic means. Minn. Stat. 325L.02(g) (emphasis added). At its core, UETA provides that: (a) A record or signature may not be denied legal effect or enforceability solely because it is in electronic form. (b) A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation. (c) If a law requires a record to be in writing, an electronic record satisfies the law. (d) If a law requires a signature, an electronic signature satisfies the law. Minn. Stat. 325L.07. The Legislature plainly intended UETA to apply to State government and its subdivisions. See, e.g., Minn. Stat. 325L.02(i) (defining governmental agency to include State executive, judicial, and legislative authorities and agencies), 325L.02(p) (defining transaction broadly to include an action or set of actions . . . relating to the conduct of . . . governmental affairs). UETA authorizes each governmental agency of this state to

determine whether, and the extent to which, it will create and retain electronic records and convert written records to electronic records. Minn. Stat. 325L.17. UETA also gives the creating agency the discretion to determine the manner and format for accepting electronic records. Minn. Stat. 325L.18. UETA directs the means by which agencies are to reconcile its provisions with existing legal requirements. First, UETA explicitly exempts certain categories of documents, none of which are applicable here. See Minn. Stat. 325L.03. In addition, UETA provides that where a law other than [UETA] requires a record . . . to be sent, communicated, or transmitted by a specific method, the restrictions in the other law apply. Minn. Stat. 325L.08(b) (emphasis

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added). However, any requirement under law other than this chapter to send, communicate, or transmit a record by first-class mail, postage prepaid, or regular United States mail may be varied by agreement to the extent permitted by the other law. Id. at (c)(2). C. The Secretary Has Statutory Authority to Accept Electronic Voter Registration Applications. 1. UETA applies because voter registration applications are not subject to exclusive or mandatory delivery methods.

Minnesotas voter registration laws provide a number of different means by which voter registrations may be completed and delivered to election officials. Because there is no

mandatory or exclusive means for delivery, the Secretary has the authority and discretion under UETA to permit electronic delivery. Minnesota Statutes section 201.061, subdivision 1, provides: At any time except during the 20 days immediately preceding any regularly scheduled election, an eligible voter or any individual who will be an eligible voter at the time of the next election may register to vote in the precinct in which the voter maintains residence by completing a voter registration application as described in section 201.071, subdivision 1, and submitting it in person or by mail to the county auditor of that county or to the Secretary of States Office. Minn. Stat. 201.061, subd. 1 (emphasis added). Based on this provision, Petitioners attempt to avoid the provisions of UETA by arguing that the in person or by mail language above is mandatory and exclusive. (Pet. 22.) Petitioners argument ignores the plain language of section 201.061. A plain-language reading reveals that the in person or by mail to the county auditor of that county or to the Secretary of States Office language is permissive rather than mandatory. See Minn. Stat. 645.44, subds. 15 & 15a (when interpreting Minnesota statutes, [m]ay is permissive and [m]ust is mandatory). For this reason alone, Minn. Stat. 201.061 cannot be read to

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preclude electronic delivery of voter registration applications, which is otherwise authorized by UETA. In addition, Chapter 201 as a whole demonstrates that the in person or by mail language does not constitute a mandatory requirement. Minn. Stat. 645.16 (Every law shall be construed, if possible, to give effect to all its provisions.); 645.17(1), (2) (indicating that courts are to presume that the legislature does not intend a result that is absurd, impossible of execution, or unreasonable, and that the legislature intends the entire statute to be effective and certain). Multiple means of submitting registration applications other than in person or by mail to the county auditor of that county or to the Secretary of States Office are permissible under Minnesota election law. For example, voter registration applications are frequently submitted through third parties, such as state and local government agencies, political campaigns and parties, and private entities such as the League of Women Voters. Minn. Stat. 201.061, subd. 1 (A state or local agency or an individual that accepts completed voter registration applications from a voter must submit the completed applications to the secretary of state or the appropriate county auditor within ten calendar days after the applications are dated by the voter.). See also, e.g., Minn. Stat. 201.054, subd. 3 (further regulating private third-party submission); 201.162 (further regulating public third-party submission). Every election cycle, thousands of voters submit registration applications by giving them to third parties for delivery. (Poser Aff. 11(b).) Minnesota also has accepted registration data submitted to the Secretarys Office electronically for nearly a decade. (Poser Aff. 10 (citing Minn. Stat. 201.022, .161).) These registrations are based on information obtained in connection with drivers license and/or state identification applications and are delivered to the Secretary electronically. See Minn. Stat. 201.161. In the past nine years, more than 500,000 Minnesotans have used the electronic 16

motor voter process to register to vote or to update their voter registrations. (Poser Aff. 10(a).) Finally, [n]o voter registration application is deficient and [n]o eligible voter may be prevented from voting based simply upon the method of delivery. See Minn. Stat. 201.071, subd. 3 (providing itemized list of specific requirements for a valid voter registration application, but omitting any mention of method of delivery). The fact that Minnesota law considers an otherwise valid registration effective regardless of the method of delivery further demonstrates that the in person or by mail language of section 201.061 is neither mandatory nor exclusive. These longstanding features of Minnesotas voter registration system demonstrate that Minn. Stat. 201.061 does not carry the meaning that Petitioners assert.5 On the contrary, by its plain language, and when read in the context of election laws as a whole, section 201.061, subd. 1, does not contain an exclusive or mandatory list of the means by which voters may submit their registration applications to election officials. Because section 201.061, subd. 1, contains no require[ment that] a record . . . be sent, communicated, or transmitted by a specified method, see Minn. Stat. 325L.08(b), (b)(ii), the Secretary possesses the discretion under UETA to accept voter registrations delivered electronically.6

Indeed, Minnesota law explicitly prohibits the interpretation advanced by Petitioners. See Part III-B, infra.

Petitioners point to two election law provisions that make explicit reference to electronic use connected to ballots and election resultsone permitting electronic transmission, Minn. Stat. 203B.225, and the other prohibiting it, Minn. Stat. 206.845. (Pet. at 30-31.) Contrary to Petitioners assertion, these provisions stand only for the proposition that when the legislature has intended to pass mandates related to electronic recordswhether in support or againstit has done so. No such mandates exist here. Since Minnesota law does not mandate exclusively non-electronic delivery of voter registrations, UETA authorizes the Secretary to permit online registration.

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2.

Pursuant to UETA, any requirement of delivery by U.S. mail contained in other law may be altered by agreement.

In defining delivery by mail, Minn. Stat. 201.061 explains that mail registration is defined as a voter registration application delivered to the secretary of state, county auditor, or municipal clerk by the United States Postal Service or a commercial carrier.7 Id. Even if the in person or by mail phrase could be deemed a requirement, UETA permits any requirement under law other than this chapter to send, communicate, or transmit a record by first-class mail, postage prepaid, or regular United States to be changed by agreement to allow an electronic form of delivery. Minn. Stat. 325L.08(c)(2). By creating a website, the Secretary has exercised his statutorily-provided discretion to promote voter participation and increase voter registration, Minn. Stat. 204B.27, subd. 6, and agreed to accept registration applications submitted using the prescribed electronic means.8 Minn. Stat. 325L.17 (providing that the government agency shall have discretion regarding how to implement UETA). The website provides voters the option of printing a paper form or using an electronic means of submission. Thus, voters choosing to use the website to submit

Contrary to Petitioners assertions, an internet provider does fit within the definition of a commercial carrier. (Pet. 23.) The internet is accessible only because of commercial services such as internet service providers (ISP) and internet networks. These services are typically run by private companies, including Comcast, AT&T, Sprint, etc., that make profits by transferring electronic data on behalf of customers in exchange for a fee. Thus, just as FedEx is a commercial entity that carries boxes on the Interstate Highway System, internet providers quite literally are commercial entities that carry customer data on the internet. The Secretary is explicitly authorized to create and maintain a website. See Minn. Stat. 10.60, subd. 2 (stating the purpose of a public website is to facilitate access to public services and information related to the responsibilities or function of the state agency); subds. 3(b) & 4(d) (specifically referring to the election-related Web site maintained by the Office of the Secretary of State).
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their materials are likewise agreeing to electronic delivery. This satisfies the requirements of Minn. Stat. 325L.08(c)(2).9 In sum, Minnesota law gives the Secretary the authority to accept voter registration applications that are submitted electronically. Because the Secretarys authority is based on the Minnesota Constitution and on statutes duly enacted by the Legislature, no separation of powers issues arise. For these reasons, the Court should not enjoin the Secretary of State from

continuing online voter registration. III. PETITIONERS CANNOT OBTAIN THE RELIEF THEY SEEK. Petitioners ask this Court to nullify the registrations of individuals who used the Secretarys website to deliver their registration applications electronically. Such relief is neither appropriate nor permissible in a quo warranto proceeding. In addition, Petitioners request would be unlawful under Minnesota Statutes and the Minnesota Constitution. A. Quo Warranto Does Not Provide For Invalidation Of Previously-Submitted Voter Registration Applications.

Quo warranto does not provide for the relief Petitioners request, because the writ does not apply to government conduct that is pending or has been completed. State ex rel. Danielson v. Village of Mound, 48 N.W.2d 855, 864 (Minn. 1951) ([u]ntil an actual usurpation has occurred, the remedy of quo warranto has no application); State ex rel. Lommen v. Gravlin, 295 N.W. 654, 655 (Minn. 1941) ([T]he writ of quo warranto is not allowable as preventative of, or remedy for, official misconduct and cannot be employed to test the legality of official action of public . . . officers.).

The fact that voter registrations cannot be invalidated based upon the method of delivery, see Minn. Stat. 201.071, subd. 3 and Part III-B, infra, also supports the application of UETAs provision that any requirement to transmit voter registrations by mail can be varied by agreement between the voter and the Secretary.

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In State ex rel. Sviggum v. Hanson, 732 N.W.2d 312 (Minn. App. 2007), the Ramsey County District Court issued an Order directed to the State Finance Commissioner authorizing the expenditure of State funds until the 2005 budget impasse was resolved. Individual members of the legislature brought a quo warranto action against the Finance Commissioner. The Court of Appeals denied the petition, finding that quo warranto was not the proper means to test the legality of either pending conduct or official conduct that has been completed. Id. at 319-20. The court held: What the legislators seek, in essence, is not a writ to correct an ongoing usurpation of power but a declaration that the judiciary lacks the power to authorize an executive officer to disburse funds without an appropriation by law. Quo warranto is not an appropriate action to attempt to obtain this relief. Id. at 320. The court concluded, [b]ecause it is well-established that the quo warranto remedy may be applied only to an ongoing exercise of power, we conclude that quo warranto cannot be used to challenge the constitutionality of completed disbursements of public funds. Id. By asking this Court to nullify voter registrations that have been previously submitted and processed using the Secretarys website, Petitioners improperly seek to use the writ to undo completed conduct. Quo warranto does not permit such a remedy and therefore the Petition must be denied. B. Minnesota Law Prohibits Nullifying Votes Based On The Method Of Delivery Of Registration Applications. Minnesota Statutes

Minnesota law explicitly prohibits the relief Petitioners seek.

section 201.071, subdivision 3, provides that election officials are permitted to prevent voters from voting only in narrowly-defined circumstances. First, a voter can be prohibited from voting if his or her voter registration application is deficient. Minn. Stat. 201.071, subd. 3.

Minnesota law provides, however, that [n]o voter registration application is deficient if it contains the voters name, address, date of birth, current and valid Minnesota drivers license 20

number or Minnesota state identification number, the last four digits of the voters Social Security Number, if the voter has been issued a Social Security Number, prior registration, if any, and signature. Id. Because election officials are not permitted to prevent voting based on the method by which the registration application was delivered, the relief Petitioners seek is prohibited by law. Second, section 201.071, subdivision 3, permits election officials to prohibit a voter from voting where a successful challenge has been brought pursuant to section 201.195 or section 204C.12. Id. Both of these provisions relate to the manner in which a registered voter may challenge another voters right to vote. Challenges under both provisions are limited, however, to objections as to eligibility and/or residence. Minn. Stat. 201.195, subd. 1;

204C.12, subds. 1-3. Neither statute permits a challenge based on the method by which the voter submitted his or her registration application to election officials.10 Finally, invalidating an eligible voters vote based on his or her reliance on a specific delivery method offered by the Secretary of State could violate the fundamental constitutional right to vote. See, e.g., Malone v. Tison, 282 S.E.2d 84, 89 (Ga. 1981) (declining to invalidate registrations which, due to registrar error, were submitted in locations not compliant with mandatory registration laws and considering that such action may be unconstitutional); Huffaker v. Edington, 163 P. 793, 794-95 (Id. 1917) (refusing to deprive citizens of their right to vote based on registration irregularities caused when voters relied on election officials and irregularities were caused by election officials who failed to comply with regulations directed at the officials). The Court should not grant such unconstitutional relief. See, e.g., Minn. Stat.

Petitioners make no argument that the Secretarys online registration page enables ineligible persons to vote.

10

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 645.17(3) (Minnesota courts presume that the legislature does not intend to violate the Constitution of the United States or of this state[.]). CONCLUSION For the reasons set forth above, Secretary of State Mark Ritchie respectfully requests the Court to deny Petitioners Petition for Writ of Quo Warranto. Dated: December 4, 2013. OFFICE OF THE ATTORNEY GENERAL State of Minnesota

/s/ Alethea M. Huyser ALETHEA M. HUYSER Assistant Attorney General Atty. Reg. No. 0389270 KRISTYN ANDERSON Assistant Attorney General Atty. Reg. No. 0267752 NATHAN J. HARTSHORN Assistant Attorney General Atty. Reg. No. 0320602 445 Minnesota Street, Suite 1100 St. Paul, Minnesota 55101-2128 (651) 757-1243 (Voice) (651) 296-1410 (TTY) ATTORNEYS FOR RESPONDENTS SECRETARY OF STATE MARK RITCHIE AND STATE OF MINNESOTA

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